Tabler

Action to quiet title to certain land in Fresno county. The cause was tried by the court without a jury and defendant, Will Peverill, had judgment that he is the owner in fee of the land subject to the administration of the estate of Christopher Peverill, deceased. Plaintiff appeals from the judgment and from the order denying his motion for a new trial. *Page 673 Prior to the filing of the complaint (which was August 23, 1903), defendant Martha J., widow of said deceased, on April 28, 1903, conveyed all her interest in the land to defendant Will Peverill, as did also defendants Mary M. and George A., children of deceased, on April 29, 1903. The default of Martha J. was duly entered and Mary M. and George A. disclaimed having any interest in the property. Defendant Will Peverill alone answered to the complaint. The complaint is in the form usual in actions to quiet title. The answer and cross-complaint of defendant Will Peverill denies plaintiff's title and alleges title in himself subject to administration of the estate of Peverill, deceased. In his cross-complaint asking that his title be quieted as against plaintiff, defendant alleges that on April 16, 1892, one Charles H.…

It is now claimed, as we understand the petition, that by the decree of divorce introduced by plaintiff, the property rights of the parties to the divorce action were fully and finally determined. It appeared from the complaint that plaintiff, Mrs. Peverill, said nothing about any property. In his answer and cross-complaint defendant Peverill referred to certain personal property and also to the real property now in controversy, all of which he averred was the community property of the parties. In her answer to the cross-complaint, plaintiff does not mention the personal property, but denies that the real property is community property and avers that it is her separate property. The decree, as pointed out in the opinion, purported to dispose only of certain specified articles of community and personal property. It seems clear to us that the decree left the real estate undisposed of. In the present action we are not seeking to set aside or disturb the decree, but only to give it effect so far as we may do so. If it be true, as we think it is, that the real property remained undisposed of by that decree, the parties remained tenants in common of the real property as was pointed out.…